IN RE AGYEPON1 - Judicial Training Institute

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IN RE AGYEPONG (DECD.); ABOSI v. POKU [1973] 2 GLR 456-479
HIGH COURT, SEKONDI
1 JUNE 1973
I
CHARLES CRABBE J.
Practice and procedure—Writ of summons—Conditional appearance—Effect—
Claim by plaintiff
for an order to revoke grant of letters of administration made to defendant—Entry of
conditional appearance by defendant—Subsequent application by defendant to set
aside writ on
grounds of want of jurisdiction—Whether the effect of the conditional appearance
was to
limit the defendant under Order 12, r. 24 to objecting to the writ only on grounds of
irregularity
—Whether defendant entitled to raise the question of jurisdiction—Supreme [High]
Court
(Civil Procedure) Rules, 1954 (L.N. 140A), Order 12, r. 24.
Administration of estates—Letters of administration—Caveat—Affidavits of interest
disputing
deceased's ownership of properties included in inventory—Whether judge
exercised his
discretion properly in refusing to order a writ to issue—Whether Order 60, r. 21 (2)
of
L.N. 140A can become operative and give the judge a discretion where the parties
have
not come to an agreement as required by r. 21 (1)—L.N. 140A, Order 60, r. 21 (1)
and (2).
Administration of estates—Letters of administration—Caveat—Previous application
by
defendant for letters of administration in respect of the estate of deceased
husband—Grant
made to defendant by High Court, Kumasi, after hearing caveat filed by plaintiff as
customary
successor of deceased—Court exercising its discretion against the issue of a writ
by
defendant to determine proper person entitled to grant—Grant subsequently
confirmed by
Court of Appeal—Plaintiff as customary successor laying claim in caveat
proceedings to
some properties of deceased as family property—Present claim by plaintiff for
revocation
of grant on grounds of fraud and irregularity—Whether conflicting claims arose in
the caveat
proceedings which required adjudication—Whether having regard to Act 63, ss. 1
(2) (a)
and 79 (4) and the claim to family property by the plaintiff, an order for the issue of
a writ
of summons ought to have been made—Administration of Estates Act, 1962 (Act
63), ss.
1 (2) (a) and 79 (4)— L.N 140A of 1954, Order 60, r. 21 (2).
Judicial precedent—Non-binding decision—Decision of Court of Appeal—Grant of
letters of
administration by High Court, Kumasi, affirmed by Court of Appeal—Writ issued in
High Court,
Sekondi, seeking to revoke grant on grounds of fraud—Finding by trial judge that
decision of
Court of Appeal per incuriam and concerned with different subject-matter— Refusal
by
trial court to consider itself bound by judgment of Court of Appeal.
Courts—High Court—Jurisdiction—Whether a division of the High Court has
jurisdiction
on territorial basis—Constitution, 1969, art. 112 (3).
Estoppel—Per rem judicatam—Grant of letters of administration—Previous
application
by defendant for letters of administration in respect of the estate of deceased
husband—
Grant made to defendant by High Court, Kumasi, after hearing caveat filed by
plaintiff
as customary successor of deceased—Court exercising its discretion against the
issue
of a writ by defendant to determine proper person entitled to grant—Present claim
by plaintiff for a declaration that the [p.457] marriage of defendant with deceased
husband was a nullity under the Marriage Ordinance, Cap. 127 (1951 Rev.)—
Whether
plaintiff estopped by the grant of letters of administration from challenging the
validity
of the defendant’s marriage.
Administration of estates—Letters of administration—Revocation—Letters of
administration
in respect of the estate of A. granted by High Court, Kumasi, to defendant after
hearing
caveat filed by plaintiff—Appeal against grant subsequently confirmed by Court of
Appeal—Present claim by plaintiff for revocation of the grant made by the High
Court,
Kumasi, on grounds of fraud and irregularity—Preliminary objection by defendant
to
claim on ground of want of jurisdiction—Whether court being a court being a
court of co-ordinate jurisdiction vis-à-vis the High Court, Kumasi, competent to
revoke
the grant—Whether grant of letters of administration revocable—Interpretation Act,
1960 (C.A. 4), ss. 10-12—Act 63, ss. 67 and 80.
HEADNOTES
Mrs. A. as the lawful widow of her deceased husband applied to the High Court,
Kumasi, for letters of administration in respect of his estate. Three persons, all
acting by the same solicitor, and including the plaintiff herein, caveated and filed
affidavits
of interest laying claim to certain properties as being family properties which the
widow
had included in the inventory, of property of the deceased. The trial judge found
that
the affidavits of interest disclosed no issue as to who should administer the
deceased's
estate and that as the widow's right to administer it was not questioned, the caveats
should go. This decision was affirmed by the Court of Appeal (In re Agyepong
(Decd.); Donkor v. Agyepong [1973] 1 G.L.R. 326) which held that Order 60, r. 21
(2) of L.N. 140A conferred a discretion on the trial judge as to whether he should
order
a writ to determine who was entitled to letters of administration, that that discretion
was
properly exercised and that the affidavits of interest prepared with full professional
assistance
could not be construed as taking issue with the widow on her right to administer her
husband's estate.
Subsequently, the plaintiff acting through the same solicitor, claiming to be the
head of family and successor of the deceased husband, issued a writ against the
widow,
this time in the High Court, Sekondi, seeking a declaration that the self-acquired
and
family properties of which the deceased died possessed were vested in him as
successor and head of family; a declaration that the marriage between the
deceased
and Mrs. A was not in accordance with the Marriage Ordinance, and was in any
event null and void; a perpetual injunction restraining the widow, Mrs. A from
interfering
with her deceased husband's properties and an order that she surrender all the
properties or for an account or both.
The widow entered conditional appearance under protest and then sought to move
the court for an order striking out or setting aside the writ on the grounds of lack of
jurisdiction in that the writ was in effect seeking revocation of the letters of
administration
granted by the High Court and confirmed by the Court of Appeal, and that the
proper
forum for such an action was either the High Court, Kumasi, or the Court of
Appeal.
She also contended that the plaintiff was estopped from now challenging her
marital
status since (1) it was the basis of her application for letters of administration and
he never raised the matter then; and (2) the plaintiff himself attended the marriage
ceremony
and his father signed the marriage certificate. The plaintiff however contended that
the widow was not entitled to raise the question of lack of jurisdiction because the
effect
of the conditional appearance was to limit the widow under Order 12, r. 24 to
setting aside
the writ only on grounds of irregularity and not on any other ground.
[p.458]
On the preliminary issue of jurisdiction,
Held, dismissing the application:
(1) the effect of the conditional appearance by the defendant was not only to
prevent
(2) a default judgment being obtained against her but also to preserve her right
to
(3) object to the writ either on grounds of irregularity regarding the issue or
service
(4) of the writ or for want of jurisdiction. Consequently the defendant was
entitled to
(5) raise the question of want of jurisdiction.
(2) Order 60, r. 21 (2) of L.N. 140A could not be interpreted without regard to the
provisions
of sub-rule (1) which had the operative words "if the parties can come to an
agreement among themselves." That meant that sub-rule (2) did not become
operative unless the provisions of sub-rule (1) were complied with. The conclusion
of
the Court of Appeal that the word "may" in sub-rule (2) conferred a discretion on
the
court to order or not to order a writ and that the trial judge exercised his discretion
properly against the issue, was therefore arrived at per incuriam. The judge had a
discretion but having regard to the combined effect of Act 63, ss. 1 (2) (a) and 79
(4)
and the fact that in the earlier caveat proceedings, the plaintiff as customary
successor
had laid claim to some properties of the deceased as being family properties,
conflicting
claims arose between the parties which required adjudication and in the
circumstances
the proper interpretation was that the judge should be obliged to issue a writ.
Since no
writ was issued, the merits of the case were not gone into. Thus in all the
circumstances
there was no binding decision of the Court of Appeal precluding the court from
hearing the
matter. Further, the issue here was whether the letters of administration could be
recalled or revoked and the Court of Appeal made no decision on that in the case
before it. Julius v. Oxford (Bishop) (1880) 5 App.Cas. 214, H.L.; dicta of Sir John
Nicholl in Brett v. Brett (1826) 3 Add. 210 at p. 216 and of Blackburn J. in Rein v.
Lane (1867) L.R. 2 Q.B. 144 at p. 151 cited. In re Agyepong (Decd.); Donkor v.
Agyepong [1973] 1 G.L.R. 326, C.A. criticised.
Per curiam. I respectfully agree with the Court of Appeal that the judge had a
discretion to exercise. But it seems to me that the Court of Appeal did not
distinguish
between the power of the judge, that is his discretion and the duty of the judge, that
is
to say whether in the circumstances of the particular case before him there was an
obligation upon the judge to exercise the power to order the issue of a writ of
summons.
(3) There was one indivisible High Court of Justice which could be duly constituted
"by any one Justice thereof” competent to exercise any jurisdiction conferred on the
High Court, in any cause or matter save as prohibited by law. Thus article 112 (3)
of the
1969 Constitution which created divisions of the High Court did not give specific
jurisdiction to any such division on a territorial basis. Since it was clear that the
High
Court had power under C.A. 4, ss. 10-12 and Act 63, ss. 67 and 80 to revoke
a grant of letters of administration, the court had jurisdiction to revoke the grant
made
to the defendant by the High Court, Kumasi, on grounds of fraud or irregularity.
Per curiam: It seems to me that there is a distinction between one court of co-equal
jurisdiction declaring an order of another court as being invalid and the question of
recall or revocation of the grant of letters of administration. Dankwa v. Fuller
(1958)
3 W.A.L.R. 168, C.A. and Punjabi Brothers v. Namih [1962] 2 G.L.R. 46, S.C.
distinguished.
(4) The defence of estoppel per rem judicatam was not open to the defendant
because
if the High Court, Kumasi, had ordered writ of summons [p.459] to issue, it was
not unreasonable to suppose that in that wise, the plaintiff as caveator would
have had to produce evidence to support his contention that the defendant was
not entitled to the grant and this might have involved adducing evidence showing
that the marriage of the defendant Mrs. A with the deceased husband, was a nullity.
CASES REFERRED TO
(1) Punjabi Brothers v. Namih [1962] 2 G.L.R. 46, S.C.
(2) Simpson v. Fogo (1860) 1 John. & H. 18; 29 L.J.Ch. 657; 6 Jur. (N.S.) 949; 8
W.R. 407.
(3) Routledge v. Hislop (1860) 2 E. & E. 549; 29 L.J.M.C. 90; 2 L.T. 53; 24 J.P. 148;
6 Jur. (N.S.) 398; 8 W.R. 363.
(4) Dankwa v. Fuller (1958) 3 W.A.L.R. 168, C.A.
(5) Greathead v. Bromley (1798) 7 Term. Rep. 455.
(6) In re May (1885) 28 Ch.D. 516; 54 L.J.Ch. 338; 52 L.T. 78; 1 T.L.R. 220; 33
W.R. 917, C.A.
(7) Reichell v. Magrath (1889) 14 App.Cas. 665; 59 L.J.Q.B. 159; 54 J.P. 196, H.L.
(8) Kinch v. Walcott [1929] A.C. 482; 98 L.J.P.C. 129; 141 L.T. 102, P.C.
(9) Nimoh v. Acheampong [1959] G.L.R. 49, C.A.
(10) In re Agyepong (Decd.); Donkor v. Agyepong [1973] 1 G.L.R. 326, C.A.
(11) In re Agyepong (Decd.); Agyepong v. Donkor, High Court, Kumasi, 4 July
1972,
unreported.
(12) Owusu v. Kisiwa [1972] 2 G.L.R. 99.
(13) In re Eburahim (Decd.); Ansah v. Ankrah (1958) 3 W.A.L.R. 317.
(14) Hubbuck & Sons Ltd. v. Wilkinson, Heywood and Clark Ltd. [1899] 1 Q.B. 86;
68
L.J.Q.B. 34; 79 L.T. 429; 15 T.L.R. 29; 43 S.J. 41, C.A.
(15) Mmera v. Achampong [1962] 1 G.L.R. 74.
(16) Aryee v. Blankson [1972] 2 G.L.R. 247.
(17) Collins v. Gough (1785) 7 Bro. Parl. Cas. 94; 3 ER. 62, H.L.
(18) Hadley v. Green (1832) 2 Cr. & J. 374; 2 Tyr. 390; 1 L.J.Ex. 137; 149 ER. 159.
(19) Hunter v. Stewart (1861) 4 De. G.F. & J. 168; 31 L.J. Ch. 346; 5 L.T. 471;
8 Jur. (N.S.) 317; 10 W.R. 176; 45 E.R. 1148.
(20) Brandlyn v. Ord. (1738) 1 Atk. 571; 26 E.R. 359.
(21) Rigge v. Burbidge (1846) 15 M. & W. 598; 4 Dow. & L. 1; 15 L.J. Ex. 309; 153
E.R. 988.
(22) Moore v. Battie (1759) Amb. 371; 27 ER. 247.
(23) Payana Reena Saminathan v. Pana Lana Palaniappa [1914] A.C. 618;
83 L.J.P.C. 131; 110 L.T. 913, P.C.
(24) In re Koenigsberg; Public Trustee v. Koenigsberg [1949] Ch. 348;
[1949] 1 All E.R. 804; [1949] L.J.R. 1098, C.A.
(25) Watson v. Watson [1954] P. 48; 97 S.J. 746; sub nom. W. v. W. [1953]
2 All E.R. 1013.
[p.460]
(26) Marginson v. Blackburn Borough Council [1939] 2 K.B. 426; [1939] 1
All E.R. 273; 108 L.J.K.B. 563; 160 L.T. 234: 55 T.L.R. 389; 83 S.J. 212, C.A.
(27) Julius v. Oxford (Bishop) (1880) 5 App.Cas. 214; 49 L.J.Q.13. 577;
42 L.T. 546; 44 J.P. 600; 28 W.R. 726, H.L.
(28) Brett v. Brett (1826) 3 Add. 210.
(29) Rein v. Lane (1867) L.R. 2 Q.B. 144; 8 B. & S. 93; 36 L.J.Q.B. 81; 15 W.R.
345; 2 Mar. L.C. 448.
(30) R v. Akiwumi and Bannerman; Ex parte Dako (1957) 3 W.A.L.R. 137.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION on the grounds of lack of jurisdiction to a claim by the
plaintiff, as customary successor of A for revocation of grant of letters of
administration in respect of the estate of A made to the defendant, the widow, by
the High Court, Kumasi, and affirmed by the Court of Appeal.
COUNSEL
Akainyah for the plaintiff-respondent.
Dr. E. V. C. de Graft-Johnson (Konduah with him) for the defendant-applicant.
JUDGMENT OF CHARLES CRABBE J.
The plaintiff issued a writ, filed on 24 January 1973, claiming as head of family and
customary successor of the late J. K. Agyepong,
"(a) A declaration that the self-acquired and family properties of which the late J. K.
Agyepong died possessed of are now vested in the plaintiff by virtue of his
appointment as successor and head of family.
(b) A declaration that the marriage of the late J. K. Agyepong with the defendant
was not in accordance with the Marriage Ordinance, Cap. 127 (1951 Rev.).
(c) Perpetual injunction restraining the defendant, her servants and/or agents from
interfering with the properties of which the late J. K. Agyepong died possessed.
(d) An order of the court that the defendant surrender all the properties taken from
the deceased's premises and/or for an account."
In an affidavit in verification of the endorsement on the writ, the plaintiff stated that
he is the lawfully appointed successor and head of family of the late J. K. Agyepong
"having been so appointed in succession to the late J. K. Agyepong; that the
defendant was the second or otherwise the junior wife of the late J. K. Agyepong
but they divorced and/or ceased to cohabit with each other more than seven years
before the death of J. K. Agyepong."
As a result of the divorce or cessation of cohabitation "the defendant re-married
during the lifetime of the late J. K. Agyepong; and that the defendant had obtained
letters of administration claiming to be a wife [p.461] married in accordance with the
Marriage Ordinance, Cap. 127 (1951 Rev.), to the late J. K. Agyepong at the time
of his death, failing to disclose these facts."
The plaintiff claims to be a uterine brother of the late J. K. Agyepong. He says that
some time in the late 1920's, the late Agyepong, an Ashanti by birth, married one
Madam Afua Num in accordance with Ashanti customary law. There were eleven
issues of this marriage, eight of whom survived the late Agyepong. That marriage
under Ashanti customary law subsisted until the death of the late Agyepong at
Takoradi on or about October 1971.
In 1956 the late Agyepong married the defendant, she being aware of the existing
customary law marriage between the late Agyepong and Madam Afua Num. There
were two living issues of the marriage with the defendant. In or about the year
1957 the late Agyepong married again one Madam Awushe Esi with whom he had
five issues. The marriage between the late Agyepong and Madam Esi also
subsisted until the death of the late Agyepong.
The plaintiff says that the marriage between the late Agyepong and the defendant
was not a happy one and the defendant in consequence either re-married or
indulged in concubinage during the lifetime of the late J. K. Agyepong. The affidavit
continues as follows:
"The plaintiff says that the deceased died possessed of considerable personal
property, some of which were family properties.
The plaintiff further says that on the defendant hearing of the death of the
deceased, the defendant during the general grief of the plaintiff’s family, came from
Kumasi to Takoradi and collected the personal estate of the deceased and same
have been in her possession ever since.
The deceased was also the managing director of Broadway Cinema and Hotel
Company Limited of which he had a 331/3 interest.
The plaintiff says that he was appointed by the principal members of the family of
the late J. K. Agyepong, to succeed the said J. K. Agyepong and to be head of
family of the deceased.
The plaintiff says that the defendant applied for and obtained letters of
administration in the High Court, Kumasi, in respect of the estate of the deceased.
The plaintiff says that the application by the defendant for grant of letters of
administration was irregular and fraudulent.
The plaintiff says that the marriage between the late J. K. Agyepong and the
defendant, though valid under the Ashanti customary law, was nevertheless null
and void under the Marriage Ordinance, Cap. 127."
The particulars of fraud are stated as follows:
"(a) The defendant described herself in the application for letters of administration
as a wife married under the Marriage Ordinance, Cap. 127.
[p.462]
(b) The fact that the deceased had wives and many children was not disclosed by
the defendant."
The defendant entered appearance under protest, and conditionally. And then
sought to move this court for an order "striking out or setting aside the writ and all
other papers associated with it on account of want of jurisdiction ... to entertain the
writ ... upon the grounds particularly set out in the accompanying affidavit." In her
affidavit the defendant deposed as follows:
"That a writ filed by the plaintiff herein seeking, inter alia, the revocation of letters of
administration granted to me by the Kumasi High Court and later confirmed by the
Court of Appeal, Accra, has been served on me.
That following the death of my late husband, Mr. Joseph Kofi Agyepong, to whom I
was married under the Marriage Ordinance, Cap. 127 since 6 October 1956 until
his death on 20 December 1971, I applied for, and was granted letters of
administration by the Kumasi High Court on 8 January 1972.
That thereupon, the plaintiff herein, one Afua Donkor and Broadway Cinema and
Hotel Company Limited caveated against the said grant of letters of administration
to me.
That in July last year, the Kumasi High Court, finding no legal basis for the said
caveats, removed the caveats and finally granted the letters of administration to
me.
That following the said removal of the caveats and grant of letters of administration
to me by the Kumasi High Court, the plaintiff herein and the other
caveators/caveatrix, appealed to the Court of Appeal, Accra, against the said
decision of the Kumasi High Court.
That on 11 December 1972, the Court of Appeal dismissed the said appeal by the
plaintiff herein and the other appellants aforementioned. (A copy of the judgment of
their Lordships Justices F. K. Apaloo, A. N. E. Amissah and E. N. P. Sowah in that
suit is attached hereto marked exhibit A.)
That both at the said proceedings before the Kumasi High Court and the Court of
Appeal, the plaintiff herein and the other appellants never contested or challenged
my status as the lawful widow of my said late husband and therefore my
entitlement to the grant of letters of administration although they had every
opportunity to do so.
That I am advised and verily believe that if the plaintiff, who was a party to the said
earlier suit, is by this writ in sum seeking the setting aside or revocation of the
letters of administration granted to me by the Kumasi High Court and the Court of
Appeal, then the proper court to which he should go is the Kumasi High Court or to
the Court of Appeal.
That I am advised and verily believe that the Kumasi High Court or the Court of
Appeal, are the only courts of competent jurisdiction to hear or entertain the suit
herein based on alleged circumstances [p.463] which would vitiate the said grant of
letters of administration if proved.
That I am advised and verily believe that the Sekondi High Court is, by the writ
herein, being called upon to sit as an appellate court to revoke letters of
administration granted by the Kumasi High Court and confirmed by the Court of
Appeal which it cannot do it being a court of co-ordinate jurisdiction vis-a-vis the
Kumasi High Court . . .”
In a supplementary affidavit she deposed as follows:
"That during my application for letters of administration before the Kumasi High
Court, the plaintiff and other members of his family filed caveats.
That later the caveats were removed and the letters of administration were granted
to me.
That the plaintiff and the other caveators/caveatrix appealed to the Court of Appeal,
Accra, and lost.
That the plaintiff has had the same solicitor and counsel throughout the said
proceedings and in this suit herein which was the subject of comment by the Court
of Appeal as evidenced by exhibit A herein.
That the plaintiff by his affidavit opposing the grant of letters of administration to me
at no time challenged my marital status as the lawfully married wife of the
deceased and married under the Marriage Ordinance; the plaintiff must therefore
be deemed to have accepted the status so stated by me.
That the plaintiff comes from Kumasi and the deceased was buried in Kumasi
which was the deceased's permanent home or residence and all the funeral
ceremonies were performed in Kumasi.
That I also reside in Kumasi and I am advised and verily believe that in spite of the
concurrent jurisdiction of the courts, the courts will not allow a defendant to be sued
outside the jurisdiction of their residence so as to inconvenience them and in
particular where both parties come from the same jurisdiction.
That the plaintiff has deliberately brought these proceedings in the Sekondi High
Court and not in Kumasi in order to inconvenience and vex me as well as to throw
dust into the eyes of the Sekondi High Court which is not seised of all the facts of
this case and the said earlier proceedings.
That the plaintiff is in essence seeking to re-open the case by his writ and I am
advised and verily believe that the Sekondi High Court is not competent to re-open
a matter which has been heard to finality in the Kumasi High Court and confirmed
by the Court of Appeal, Accra.
That the plaintiff and the other caveators/caveatrix are estopped from challenging
my martial status because this was the basis for my application which they had
admitted in those proceedings.
[p.464]
That again, the plaintiff is estopped from challenging the validity of my marriage
under the Marriage Ordinance with my late husband, seeing that the plaintiff
himself attended the marriage ceremony when the plaintiff’s father and other
members of his family signed the marriage certificate.
That before the said marriage ceremony banns were published
before our
Church giving notice to the whole world of our intention to marry on 6 October
1956.
That the plaintiff’s action herein is frivolous, vexations and not bona fide and it must
be dismissed."
To the first, affidavit the plaintiff also swore to all affidavit in reply in the following
terms:
"On or about 20 December 1971, my elder brother J. K. Agyepong died at Takoradi
where he lived and worked.
Some time in January 1972, i.e, less than one month after my brother’s death when
we were mourning and certain important customary rites had not been performed
or observed, I had information that the defendant had already applied for and been
granted leave to obtain letters of administration in Kumasi in respect of my brother’s
alleged estate.
As is well known, the defendant's application for letters of administration was made
ex parte and so no notices were given to any member of the family.
However, I was informed that all our family properties and the properties of the
Broadway Cinema and Hotel Company Limited were being claimed by the
defendant.
As I could not leave Takoradi at the time I gave instructions that caveat be entered
for me and for the Broadway Cinema and Hotel Company Limited.
In due course, the warnings were obeyed and affidavits of interest filed.
A copy of the affidavit of interest filed on my behalf is annexed and marked A.
In due course, the defendants solicitor moved the High Court, Kumasi, for the grant
of letters of administration. Since the defendant and I failed to agree I assumed on
advice that the court would order a writ to be issued by the defendant against those
who had caveated.
The court, however, in the exercise of its discretion removed the caveats and
granted letters of administration to the defendant. A copy of the court's ruling is
attached and marked B.
The exercise of the court's discretion in granting letters of administration to the
defendant was affirmed by the Court of Appeal; a copy of the judgment of the Court
of Appeal is annexed to the defendant's affidavit."
To the supplementary affidavit the plaintiff deposed as follows:
[p.465]
"The Broadway Cinema and Hotel Company Limited mentioned in paragraph (13)
of my statement of claim has its registered office in Takoradi and the company has
most of its properties in the Western Region, the Sekondi-Takoradi area.
The deceased had 331/3 of the shares in the said company.
The bulk of our family properties being interfered with by the defendant are in the
Sekondi-Takoradi area. They were in the possession of the deceased as head of
family prior to his death.
The deceased lived, worked and died in Takoradi, although he was buried in
Kumasi, his hometown.
Apart from one building which the deceased had in Kumasi and assigned to his
niece during his lifetime, the deceased had no property in Kumasi prior to his
death."
In arguing his motion counsel for the defendant stated that the defendant applied
for letters of administration to the High Court at Kumasi in January 1972, and the
application was granted. The plaintiff-respondent and two others filed caveats. On 4
July 1972, the High Court, Kumasi, finding no legal basis removed the caveats and
granted letters of administration to the defendant.
The plaintiff never questioned the inventory of the application for letters of
administration on the ground that it included family property. Neither did he ever
question the marital status of the defendant. But there was appeal to the Court of
Appeal at the instance of the caveator which was dismissed.
The plaintiff has now brought this present suit seeking the revocation of the grant
by the High Court at Kumasi, confirmed by the Court of Appeal, on ground of
alleged fraud and also seeking a declaration that the marriage between the
defendant and the deceased was a nullity. Counsel contended that what the
plaintiff is seeking to do is to set aside the letters of administration. A judgment
obtained by fraud can be set aside. But if the writ of the plaintiff has any merit at all
in it, it must go before the Kumasi High Court which made the grant. Counsel
referred to Punjabi Brothers v. Namih [1962] 2 G.L.R. 46, S.C.
It was contended that the defendant resides in Kumasi, the permanent abode of the
late Agyepong was in Kumasi, the earlier proceeding's were in Kumasi precisely
because of this fact and any attempt to challenge these proceedings or to have the
earlier case retried must be to the same court. The practice of suing the defendant
where he resides is still valid and it is in fact the rule rather than the exception. The
facts sought to be challenged in this court are facts which the other court was
seised of or ought to have been seised of and it is the proper forum to have the
case re-opened.
Counsel then raised the question of estoppel. He contended that the status of the
defendant was never challenged. It was not controverted in any way and the
plaintiff who was one of the caveators is clearly estopped from raising the issue
now. He further contended that the estoppel can only be set aside if the plaintiffs
can show that these matters were not [p.466] known to them at the time. They
have given particulars of fraud. The particulars of fraud are contained in the
statement of claim. If it was fraud it was up to them to have raised it at that time.
These matters must have been within their competence at the time.
In the supplementary affidavit of the defendant she has alleged that the plaintiff,
among others, was a signatory to the marriage certificate,
"therefore they cannot challenge the status of the marriage. It was because they
know very well that the defendant was properly married that they never raised that
issue in the original case.
It is also very significant that the plaintiff in trying this particular forum should try to
avoid the High Court, Kumasi. The plaintiff in his statement of claim did not make
this clear. Nothing was said about the appeal and the judgment of the Court of
Appeal. What is even worse is that what the deceased had was irrelevant to the
application. He had every opportunity to put in a caveat. This is not one of those
cases where the sins of counsel should not be visited upon the parties.
It is the first thing which should have occurred to the plaintiff to challenge the
entitlement of the defendant to the application for the grant of letters of
administration. The particulars of fraud are inadequate to ground any fraud at all."
Counsel referred to Simpson v. Fogo (1860) 29 L.J.Ch. 657; Routledge v. Hislop
(1860) 29 L.J.M.C. 90. Counsel also sought to rely on Dankwa v. Fuller (1958) 3
W.A.L.R. 168, C.A.; Greathead v. Bromley (1798) 7 Term. Rep. 455; In re May
(1885) 28 Ch.D. 516, C.A.; Reichell v. Magrath (1889) 14 App.Cas. 665 at p. 668,
H.L.; Kinch v. Walcott [1929] A.C. 482 P.C. and Estoppel by Everest and Strode
(2nd ed.), pp. 91-94.
Counsel for the plaintiff in reply stated that the application of the defendant is
misconceived. The claims of the plaintiff are four in number as specified on the
writ. All the reliefs which the plaintiff claims are within the jurisdiction of the High
Court. The application does not fall within the exceptions of section 14 of the
Courts Act, 1971 (Act 372). There are no divisions of the court. The plaintiff in
taking action considers the forum which is convenient to him.
Counsel for the plaintiff said that the plaintiff comes from Takoradi, the Broadway
Cinema and Hotel Co., Ltd. have their properties mostly in Takoradi. The
deceased had 331/3 shares in that company and most of the family properties are
in the Western Region. He then referred to Order 74 of the Supreme [High] Court
(Civil Procedure) Rules, 1954 (L.N. 140A).
According to counsel, "our rules do not provide the procedure for calling in letters of
administration so we fall on the English Rules." He referred to appendix J Part IV
No. 7 of the White Book (1962 ed.) at p. 2356 and appendix A Part IV at p. 2212.
The grounds for the revocation of a grant are stated in Tristram and Coote's
Probate Practice (21st ed.) at p. 587. Counsel contended that this is a citation
proceeding and the [p.467] substance of the action is not the same as the previous
action regarding the grant of the letters of administration.
Counsel said that on 2 February 1973, the defendant entered appearance
conditionally and therefore rule 24 of Order 12 of L.N. 140A will apply. This rule is
in pari materia with Order 12, r. 30 of the English Rules where the principle is that
when conditional appearance is entered the defendant is limited only to setting
aside the writ on the grounds of irregularity and nothing more. He therefore
submitted that the defendant had not shown any irregularity or that she had been
irregularly served. All that she is saying is that she lives in Kumasi and it is not
convenient to her to be sued in Sekondi.
Counsel contended that res judicata is a valid defence but it is not a ground for
setting aside a writ on the ground of irregularity. Res judicata should be raised not
as a preliminary objection but as a defence when the substantive case is called for
trial or at the trial. The judgment referred to was mainly on the question of
interpretation, namely, whether a judge should be bound to order pleadings or not
where the parties do not agree: Nimoh v. Acheampong [1959] G.L.R. 49, C.A. says
that the court is bound.
The Court of Appeal in the previous letters of administration case, i.e. In re
Agyepong (Decd.); Donkor v. Agyepong [1973] 1 G.L.R. 326 said that the judge
had a discretion. Counsel referred to the ruling of Koranteng-Addow J. in In re
Agyepong (Decd.); Agyepong v. Donkor, High Court, Kumasi, 4 July 1972,
unreported. Counsel submitted that no pleadings were ordered in that application;
therefore whether or not the deceased died having any property and if so which
property was not gone into by the court. Whether or not any properties in the
hands of the deceased were family property was not gone into by the court.
Whether or not the defendant was lawfully married to the deceased was not gone
into because no pleadings were ordered. The court merely exercised its discretion.
In Owusu v. Kisiwa [1972] 2 G.L.R. 99, Koranteng-Addow J. granted letters to a
woman who came to court and said she was married under custom. There was
caveat by the customary successor but the judge refused on the ground that he
was exercising his discretion. Counsel said that on all the arguments no case has
been made on the issue of irregularity. Counsel referred to In re Eburahim (Decd.);
Ansah v. Ankrah (1958) 3 W.A.L.R. 317. He also referred to Order 25, rr. 2 and 4
of L.N. 140A and said that the procedure is laid down in Hubbuck & Sons Ltd. v.
Wilkinson, Heywood and Clark Ltd. [1899] 1 Q.B. 86 at p. 91, C.A. and the
defendant had not come by the procedure laid down. He also referred to Mmera v.
Achampong [1962] 1 G.L.R. 74. "But in this case," he said:
"the defendant is denying some of the averments in the statement of claim if not all
therefore the defendant cannot come under Order 25, rr. 2 and 4. And if the
application is made under Order 25 the court should confine itself to only the
matters disclosed by the pleadings. The defendant just put down 'motion on
notice'. Aryee [p.468] v. Blankson [1962] 2 G.L.R. 247. No pleadings have been
filed. The only statement before the court is the statement of claim.”
On the question of res judicata counsel submitted that it is the law that no estoppel
per rem judicatam arises in respect of an issue which was not directly in issue at
the trial. He referred to Halsbury’s Laws of England (3rd ed.), Vol. 15, p. 207, para.
387 and p. 185 para. 358; Collins v. Gough (1785) 7 Bro. Parl. Cas 94; Hadley v.
Green (1832) 2 Cr. & J. 374; Hunter v. Stewart (1861) 4 De G.F. & J. 168; Brandlyn
v. Ord. (1738) 1 Atk. 571; Rigg v. Burbidge (1846) 15 M. & W. 598; Moore v. Battie
(1759) Amb. 371; Payana Reena Saminathan v. Pana Lana Palaniappa [1914] A.C.
618, P.C.; In re Koenigsberg; Public Trustee v. Koenigsberg [1949] 1 All E.R. 804
at pp. 809-810, C.A; Watson v. Watson [1954] P. 48 and Marginson v. Blackburn
Borough Council [1939] 1 All E.R. 273, C.A.
In view of the very substantial legal arguments raised by counsel for the plaintiff
which needed a reply, counsel for the defendant was given the opportunity, upon
an adjourned date, to have his say. He said that “at this stage we are not
interested in the form in which the action is brought.” He had only entered
conditional appearance. “We are saying that we are relying solely on the question
of jurisdiction.” When asked by the court whether if the case had been set down at
Kumasi he would allow the case to go on, counsel for the defendant said “Yes,”
though he might raise some other legal issues. He asked that the case be struck
out.
I do not agree with counsel for the plaintiff that under the English Rules of the
Supreme Court when a party to an action enters appearance conditionally, he is
limited to setting aside that writ on ground of irregularity only. It seems to me that
the correct view is that when the defendant in this case entered appearance with
protest she sought to prevent a default judgment being obtained against her while
at the same time preserving the right to object to any irregularity regarding the
issue or service of the writ. But this is not all. Entering an appearance in qualified
terms means that the jurisdiction of the court could be attacked. It is a procedure,
even under the old Order 12, r. 30 provisions of the English rules, to enter
appearance “with protest” to preserve one’s right and to raise the question of
jurisdiction. The defendant does not, in my view, have to rely solely on any
irregularity as regards the issue or the service of the writ. She is entitled to raise
the question of jurisdiction.
Order 74 of our Rules of the High Court of Justice, i.e. L.N. 10A of 1954 does
permit reference to the “procedure, practice and forms in force for the time being in
the High Court of Justice in England … so far as they can be conveniently applied
…” These are to be in force in the High Court where no provision is made by our
own Rules.
The first question which arises is whether letters of administration having been
granted can be called in. These can be little doubt that the answer to this question
is in the affirmative as the authorities cited by counsel for the plaintiff amply
demonstrate. If anything the Interpretation Act, 1960 (C.A. 4), in section 10 to 12
allows such a power of revocation [p.469] since the power to grant implies the
power to revoke. And sections 67 and 80 of the Administration of Estates Act,
1962 (Act 63), clearly show that a grant of letters of administration can be recalled
or revoked.
The second question which then arises is, if letters of administration can be
recalled or revoked who has the power to revoke or recall. This raises the question
of jurisdiction which is, indeed, as counsel for the defendant stated, the basis of the
whole application now before the court.
This is tied up with the issue of res judicata, the basic principle of which is that once
a cause or matter has been finally disposed of by a court of competent jurisdiction
over the parties thereto or their privies and for all matters relative thereto, the same
parties or their privies cannot relitigate on the same issues.
On the available facts, the defendant applied for letters of administration. There
was a caveat, by one Afua Donkor, the Broadway Cinema and Hotel Company Ltd.,
and one Kwame Abosi, the last of which is the plaintiff in this case. The matter
came before the High Court of Justice, Kumasi. The record of proceedings before
that Court is as follows:
"Dr. Ohene-Djan for the applicant.
Mr. Akainyah for the caveatrix and caveators.
Dr. Ohene-Djan moves and submits that when the widow, the applicant sought
leave to administer the estate of her late husband and notices were posted three
persons caveated. Those included Madam Afua Donkor whose only claim is that
she has an assignment of a house which should [not] have been part of the estate.
Then there is Kwame Abosi whose claim is as to a part of the estate (two houses
and a plot of land all at Takoradi). He is saying that he has been appointed
customary successor to the deceased. The third caveator is a limited liability
company. They are claiming to be the owners of certain properties listed in their
affidavit. Mr. Akainyah replies and submits that an order for letters of
administration should not be granted because his clients Jay claim to some
properties supposed to be part of the estate—they are family properties and
properties belonging to a limited liability company. And so no order should be
made to enable the applicant to administer the estate of the deceased.
He refers the court to Order 60, r. 21 (2) and submits that the court is bound to
order a writ to issue in the matter.
By Court: My understanding of Order 60, r. 21 (2) is that when there is a dispute as
to which of two or more applicants is entitled to administer the estate of a deceased
person each of them having an interest in the estate, then the court should order a
writ to issue if the parties do not agree, and to try the issue and to determine who is
the proper person to administer the estate. There are no such conflicting claims in
this case. I will therefore uphold the application to order that the caveats be
removed and letters of administration issue to the applicant. Costs of ¢40.00 each
against the three caveators in favour of the applicant."
[p.470]
This record clearly shows that counsel for the defendant cannot be right when he
stated from the Bar that the plaintiff never questioned the inventory attached to the
application for letters of administration on the ground that it included family
property. However, the order of the court raises some questions of interpretation
as to the meaning of sub-rule (2) of rule 21 of Order 60 of the Supreme [High] Court
(Civil Procedure) Rules, 1954.
It is my view that sub-rule (2) of rule 21 cannot be interpreted without regard to the
provisions of sub-rule (1) of the same rule. The first sub-rule has the operative
words "if the parties can come to an agreement among themselves . . ." (The
emphasis is mine). This means that sub-rule (2) does not become operative unless
the provisions of sub-rule (1) are complied with.
On the record of the proceedings as reproduced above, there is nothing to show
that the parties agreed "among themselves, as to the person or persons to whom a
grant of ... letters of administration . . . should be made." Since the parties did not
agree among themselves, it was up to the court to order the issue of a writ of
summons so that the court could be in a position "to determine the issue as to who
is entitled to grant of . . . letters of administration."
This is a case in which more than the mere question of interest arose. There was
the claim that some of the properties involved were family property. There was the
claim that some of the properties involved were properties belonging to a limited
liability company. There was the claim that one of the caveators had been
appointed a customary successor. That means that an issue under paragraph (a)
of subsection (2) of section I of the Administration of Estates Act, 1962 (Act 63),
arises for consideration having regard to the provisions of subsection (2) of section
79 of that Act.
But the court held that there were "no conflicting claims." In my view there were.
Could letters of administration be granted to the widow of a shareholder of a limited
liability company to administer the property of the company? I think not. A
company is a legal person, having directors who administer the property of the
company and in whom such properties are "vested" as trustees for the company.
Could letters of administration be granted to a widow to administer, some, at least,
of the family properties of the husband as against the customary successor in
whom such properties are vested by operation of law? I think not.
Be that as it may, the case went on appeal. The issue on the appeal centred upon
the interpretation of the word "may" as used in sub-rule (2) of rule 21 of Order 60.
The Court of Appeal in In re Agyepong (Decd.): Donkor v. Agyepong [1973] 1
G.L.R. 326, came to the conclusion at p. 333 that "the word 'may' imports a
discretion" and that as "Order 60, r. 21 (2) confers a discretion on the court to order
or decline to order the issue of writ as it thought fit," the court thinks "the judge
exercised his discretion properly against the issue of a writ." It is my respectful
submission that this decision was arrived at per incuriam.
[p.471]
It may well be that Nimoh v. Acheampong [1959] G.L.R. 49, C.A. should now be
given "its quietus." I respectfully agree with the Court of Appeal that the judge had a
discretion to exercise. But it seems to me that the Court of Appeal did not
distinguish between the power of the judge, that is, his discretion and the duty of
the judge, that is to say whether in the circumstances of the particular case before
him there was no obligation upon the judge to exercise the power to order the issue
of a writ of summons.
The Court of Appeal made a passing reference to Julius v. Oxford (Bishop) (1880)
5 App.Cas. 214, H.L. and said at p. 333:
"This is not one of those cases [in which 'may' should be interpreted as 'must'] and
we can conceive of no good reason why we should interprete 'may' as 'must' in
these procedural rules. Such an interpretation lends itself to abuse of the judicial
process because a caveator who had no good ground for opposing the grant of
probate or letters of administration may nevertheless oblige a bona fide applicant to
commence litigation."
Now, what about the bona fide caveator who has a good ground for opposing the
grant of letters of administration to a bona fide applicant? Why should his interests
be shut out, cut off, because there could be the possibility that a caveator who has
no good ground could oblige a bona fide applicant to commence litigation. Courts of
law exist to administer justice. And cases are to be decided on the merits of each
particular case. And should a person with a good case be precluded from obtaining
justice just because a person with a bad case could use the same procedure? And
yet that, it seems, is what the Court of Appeal is saying. And the courts in this
country have ample powers to deal with frivolous and vexatious litigation.
In Brett v. Brett (1826) 3 Add, 210 at p. 216 Sir John Nicholl said that,
"The key to the opening of every law is the reason and spirit of the law; it is the
'animus imponentis' the intention of the law maker, expressed in the law itself,
taken as a whole."
In Rein v. Lane (1867) L.R. 2 Q.B. 144 at p. 151, Blackburn J. said,
“It is, I apprehend, in accordance with the general rule of construction in every
case, that you are not only to look at the words, but you are to look at the context,
the collocation, and the object of such words relating to such matter, and interprete
the meaning according to what would appear to be the meaning intended to be
conveyed by the use of the words under the circumstances."
It is because of such considerations that "may" has been interpreted in some cases
to mean "must." Rule 14 of Order 60 allows a person to enter a caveat. There must
be some reasons why the rule allows such an action, such a procedure. Why
should the rules oblige an applicant to file a warning? Why does rule 21 lay down
the procedure for the hearing of the motion? There is a meaning, there is a
purpose. The whole purpose [p.472] is to determine to which person or persons
the grant should be made. And the rule exists for the mala fides applicant as well
as the bona fides applicant.
The circumstances of the case before the court at Kumasi are that a claim was
made regarding family property: a claim was made regarding the property of a
limited liability company. In my view the court cannot say that there were no
conflicting claims and refuse to order the issue of a writ to determine to whom
letters of administration should issue.
Under paragraph (a) of subsection (2) of section 1 of the Administration of Estates
Act, 1962 (Act 63), if the entire estate devolves under customary law the estate
should vest in the successor. There was a claim regarding family property, the
distribution of which would be by customary law. A successor has been appointed
or alleged to have been appointed in whom the property was vested by operation of
law. What
right had the widow in the circumstances of this case better than
the successor to administer the family property? Where does she come in at all as
far as the family property is concerned?
Then under the provisions of section 48 of the Marriage Ordinance, Cap. 127 (1951
Rev.), the widow as administratrix would be entitled, as trustee, to sell the property
concerned and divide the proceeds "in the manner therein provided." Can a widow
sell the family property of her deceased husband? I think not. Since there are
"other children" their interests had to be protected; which raises in itself substantial
legal questions. And the "willingness [of the defendant-applicant] to join in the grant
with one of the other children of the deceased" as stated by the Court of Appeal in
In re Agyepong (Decd.); Donkor v. Agyepong (supra) at p. 334 supports this view.
Then the question of the property belonging to a limited liability company. Can the
widow administer the property of the company of which she is not a director?
Would the law allow the widow as a trustee to sell the property of the company, a
going concern, and divide the proceeds of sale? I would say not. There were,
therefore, in the circumstances of that particular case certain issues which required
adjudication and which therefore required the court to order the issue of a writ of
summons for the issue to be properly determined. This the judge did not do.
And the Court of Appeal, itself, admits that the judge slipped in not appointing two
individuals to whom the letters of administration should be granted as required in
the circumstances of the case by the provisions of subsection (1) of section 77 of
the Administration of Estates Act, 1962. It is submitted that if the judge had
ordered the writ of summons to be issued then all the facts would have come to his
knowledge. It is not unreasonable to suppose that in those circumstances the
mandatory provisions of that subsection would have been brought to his notice.
The judge precluded himself from the benefit of the mandatory provisions of this
subsection being brought to his notice.
[p.473]
This admission by the Court of Appeal is sufficient to demonstrate that in the
circumstances of that particular case the proper interpretation would be that the
judge should be obliged to order the writ of summons. The Court of Appeal also
found it necessary to ascertain the wishes of the defendant who was the
respondent before that court. But it did not consider it necessary to ascertain the
wishes of the caveators who were the appellants before the court. The Court of
Appeal thus completely ignored the position of the customary successor in such
matters which position in view of the combined effect of the provisions of paragraph
(a) of subsection (2) of section 1, and subsection (4) of section 79 of the
Administration of Estates Act, 1962, and in view of the fact that there was a claim
that some, at least, of the property to be administered was family property, was
entitled to consideration.
The Court of Appeal did not consider that under the principles to which form and
substance were given by Julius v. Oxford (Bishop) (1880) 5 App.Cas. 214, H.L. in
which Lord Blackburn at p. 241 held in effect that enabling words are construed as
compulsory whenever the object of the power is to effectuate a legal right; and if
the object of the power is to enable the donee to effectuate a legal right then it is
the duty of the donee of the power to exercise the power when those who have the
right call upon him to do so.
The whole purpose of entering a caveat is a challenge to the applicant that some
other person or persons is or are entitled to what he claims by the application.
Those who challenge him have a legal right to be granted the letters of
administration which he is asking for. As much right as the applicant claims to
have. As far as the caveators were concerned the judge failed to exercise the
power when he was called upon to do so, the power which would have led to the
determination of the issue as to whether the applicant or the caveators is or are the
proper persons to whom the letters of administration should be made. They had a
legal right. But the merits of that legal right were not gone into.
Finally the Court of Appeal said at p. 334: "We think this is a case in which we
should accede to the wishes of the widow and thus ensure a smooth and
harmonious administration of the estate." (The emphasis is mine.) Would there
really be a harmonious administration of the estate, which, it is claimed, includes
family property and property belonging to a limited liability company if the
successor to the family property is left out? Could the directors of the company sit
down unconcerned to see a stranger administering property belonging to the
company? I doubt it. And very much so.
Under the provisions of clause (3) of article 109 of the suspended 1969
Constitution, which are still operative by virtue of the provisions of section 4 of the
National Redemption Council (Establishment) Proclamation, 1972, the High Court
of Justice is "bound to follow the decisions of the Court of Appeal on questions of
law." The issues before the Court of Appeal in the case before it were a
misdirection in law and an error in the exercise of a discretionary power. This
involved the determination of questions of law.
[p.474]
But said the Court of Appeal at p. 330, "Before us, the complaint was not that the
judge erred in failing to order pleadings but that he was in breach of a mandatory
duty to order the issue of writ in as much as the parties failed to come to an
agreement." The court then went into the issue of whether it was bound by Nimoh
v. Acheampong (supra). It came to the conclusion that it was not bound. It thus
held broadly that it saw “no good reason why [it] should interprete 'may' as 'must'."
It then considered the issue whether the judge properly exercised his discretion.
The court said at p. 333,
"It is clear that the caveatrix and the company caveator at least have said nothing
which on a most charitable view of their case can be construed as taking issue with
the respondent on her right to administer her husband's estate. The caveator
Abosi was equally more concerned in advancing his family's claim to the three
properties described in the affidavit than raising any issue with the respondent as to
her right to administer the estate."
The estate in that case, as the affidavits showed was alleged to include family
property which were vested by operation of law in the customary successor and
property belonging to a limited liability company. The purpose of the caveat, if
anything at all, was to challenge the right of the widow to administer those
properties. That is why the provisions of rule 21 of order 60 of L.N. 140A of 1954
allow the determination of "the issue as to who is entitled to a grant ... of letters of
administration."
The mere fact that there was a caveat meant that the right of the applicant to
administer the estate was being challenged. Otherwise what could be the raison
d'etre for the existence in the provisions of rules relating to the lodging of a caveat
and the procedure to be followed thereon? On the facts of the case then before the
Court of Appeal there was a conflict as to who should administer what property.
But the court held there was no conflict.
And so the court did not go into the very fundamental issue whether, in the
circumstances of that particular case the judge was obliged to order the issue of a
writ. That the judge had a discretionary power was never in question. The issue
was not whether "the judge exercised his discretion properly against the issue of
writ" but whether in the circumstances of that particular case it was his duty to order
the issue of the writ. Once there was no question of arbitrariness, caprice,
resentment, prejudice or bias the exercise of the power was proper. There was no
evidence of mala fides.
Again under the provisions of clause (3) of article 110 of the 1969 Constitution, the
Court of Appeal in dealing with the appeal in that case became possessed with "all
the powers, authority and jurisdiction vested in the Court from which the appeal is
brought." It was consequent upon that that the court sought to exercise the power
of the High Court of Justice and appointed two, instead of one, administrators.
But the Court of Appeal ascertained the wishes of the respondent—that is the
defendant before this court. It did not ascertain the wishes of [p.475] the caveators.
This is not in consonance with the provisions of subsection (2) of section 79 of the
Administration of Estates Act, 1962, which is as follows:
"In granting administration the court shall have regard to the rights of all persons
interested in the estate, including the successor, if any, under customary law . . .”
All the three caveators were claiming an interest in the estate as including certain
properties which ought not to have been included in the estate to be administered
by the widow. But their wishes were not ascertained.
In all the circumstances of this case, as demonstrated there is no question of law
decided by the Court of Appeal which binds this court. But even if I am wrong in
this regard, the issue before this court centres on whether if a grant of letters of
administration had been made the letters can be recalled or revoked. The Court of
Appeal did not make any decision on that in the case then before it. There is thus
no such decision which binds this court.
The issue before the High Court of Justice in the Kumasi case was one of the
determination of the proper person to administer the estate of the late Agyepong.
By the writ in this instant case the plaintiff is seeking, amongst others, a declaration
as to the vesting of family property in him, he being the successor of the late
Agyepong. That clearly is not the same thing as who has the right to administer the
self-acquired property of the late Agyepong.
The distinction is this. In the one the issue was who was the proper person; in the
other the issue is what property should be administered by whom. The one
involved the determination of the proper person to administer the estate, the other
will involve the determination of what property should be administered. The instant
case will undoubtedly involve the determination of what property, forming part of
the estate of the late Agyepong, is family property and whether the self-acquired
property of the late Agyepong is vested in the plaintiff by virtue of his appointment
as successor and head of family.
The capacity of the defendant to administer the estate is also to be attacked in the
instant case. The basis of her legal right to have been granted letters of
administration is being challenged. Since the judge in the Kumasi case did not
order the issue of the writ there were no pleadings before that court which would
have led to a determination of the matters now being canvassed in the present
writ. The matters which fall for determination in the present action are far more
substantial than the mere issue in the Kumasi case as to which of two persons a
grant of letters of administration should be made.
Then serious allegations of fraud are raised. Allegations of fraud which go to the
root of the action in the Kumasi case. If fraud is established in the instant case,
true it is that that would clearly affect the basis of the Kumasi case and the decision
thereon. The fundamental issue, then, is that if letters of administration can be
revoked or recalled [p.476] can res judicata be set up against the action to have the
revocation or recall, however framed? It is my view that res judicata cannot be so
raised.
It is clearly a matter for determination, since fraud has been charged, whether the
defendant misrepresented or concealed material facts in the Kumasi case and how
far she was bound to disclose those material facts; whether the misrepresentation
or the concealment was intentional and whether, indeed, the plaintiff himself
concealed certain facts within his knowledge in the Kumasi case. There is not, in
my view, the same subject-matter as supports the plea of res judicata.
But counsel for the defendant stressed that he was relying solely on the question of
jurisdiction. The provisions of article 113 of the 1969 Constitution give jurisdiction
to the High Court of Justice "in civil and criminal matters including jurisdiction in
"industrial and labour disputes and administrative complaints," as well as appellate
jurisdiction. Paragraph (a) of subsection (1) of section 14 of the Courts Act, 1971
(Act 372), gave the High Court of Justice "original jurisdiction in all matters."
Paragraph (a) of rule 1 of Order 60 of our rules, i.e. L.N. 140A of 1954 states that,
"Where any person dies within or without the jurisdiction of the Supreme Court
having his fixed place of abode within the jurisdiction, the Divisional Court of the
Judicial Division where the deceased had at the time of his death his fixed place of
abode shall have jurisdiction for the purpose of granting probate of the will or
administration of the estate of the deceased wheresoever situate within the
jurisdiction of the court."
And rule 2 of the same order has the expressions "particular jurisdiction" and "the
Divisional Court having jurisdiction." At the time the Rules were issued there were
Divisional Courts with particular territorial jurisdiction. The Supreme Court (Civil
Procedure) (Amendment) Rules, 1958, defined the High Court as "the High Court
of Justice as constituted under the Courts Ordinance." The court before which the
Kumasi case was dealt with is not a court constituted under the Courts Ordinance.
It is a court established not even under the Courts Act, 1971 (Act 372). It is a court
established under the 1969 Constitution. Clause (3) of the High Court of article 112
of that Constitution created divisions of the High Court of Justice that the
Constitution established. But it did not give specific jurisdiction to any such division
on a territorial basis. It did not create “Judicial Divisions” nor did it establish
“Divisional Courts.” Indeed by clause (2) of the said article 112, the High Court of
Justice is duly constituted by one, two or three justices thereof in accordance with
certain provisions.
The constitution of the High Court of Justice is never on a territorial basis. There is
one indivisible High Court of Justice. There are not no Judicial Divisions and
Divisional Courts in Ghana, with separate or distinct territorial jurisdictions. The
High Court of Justice can be duly [p.477] constituted "by any one Justice thereof."
In the exercise of the jurisdiction conferred upon the High Court of Justice that one
justice is the High Court of Justice. Each justice is competent to exercise any
jurisdiction conferred on the High Court of Justice in any cause or matter save as
prohibited by law as in a case where two or three justices duly constitute the High
Court of Justice.
In view of the provisions of the 1969 Constitution relative to the constitution of the
High Court of Justice above referred to, it is my view that the divisions referred to in
clause (3) of article 112 thereof are subject-matter divisions and not territorial
divisions of the High Court of Justice. There is a similar provision in clause (4) of
article 109 of the 1969 Constitution in respect of the Court of Appeal. The recent
experience of the Court of Appeal sitting in the Regions explains the point I have
tried to make.
It has never been suggested that each duly constituted sitting of the Court of
Appeal at each of the regional centres creates divisions of the Court of Appeal on a
territorial basis. It has been made abundantly clear, if only administratively, that
whatever divisions of the Court of Appeal there are, are divisions on a subjectmatter basis and not on a territorial basis. The same, in my view, applies to the
High Court of Justice.
Since the High Court of Justice duly constituted by one justice thereof can deal with
any cause or matter failing within the jurisdictional competence of the High Court of
Justice, this court, duly constituted by one justice of the High Court of Justice can
deal with any such cause or matter.
Counsel for the defendant concedes that letters of administration can be recalled or
revoked. It has not been challenged that the High Court of Justice has jurisdiction
to recall or revoke the grant of letters of administration. This court can, therefore,
deal with the matter. But on what basis?
It has not been challenged that some of the properties which formed the subjectmatter of the application for the grant of letters of administration in the Kumasi case
are in the Western Region. It is alleged that only one house, which has itself been
assigned to one Afua Donkor is situate in Kumasi. This also has not been
challenged. On that basis alone, that is, the situs of the properties involved, the
question of convenience of the defendant cannot be used as an argument for the
instant case being heard in Kumasi. The affidavit of interest in the Kumasi case
clearly stated the family properties which are situated in the Western Region.
It is also alleged that the late Agyepong lived, worked and died in Takoradi, but was
only buried in Kumasi, his hometown. This also has not been challenged. And
counsel for the defendant can never be right when he asserted that "what the
deceased had was irrelevant to the application." The grant was made for the
administration of "what the deceased had." The properties to be administered
therefore have a bearing on the grant of the letters. But a more important question
is the issue of fraud.
[p.478]
Counsel for the defendant concedes that "a judgment obtained by fraud can be set
aside." There is then an issue to be dealt with on the writ of the plaintiff. He further
contends that the plaintiff, one of the caveators in the Kumasi case, did not
question the marital status of the defendant, that he never questioned the inventory
on the ground that it contained family property; and that the marriage of the late
Agyepong to the defendant was never also questioned.
The record of the proceedings before the court at Kumasi, reproduced above,
clearly shows that the inventory was questioned—it was submitted that letters of
administration should not be granted to the applicant because there was a "claim to
some properties supposed to be part of the estate— They are family properties and
properties belonging to a limited liability company."
The record of the proceedings also show that it was urged upon the court in the
Kumasi case to issue an order for a writ of summons to issue. If that had been
done, then the question as to whether the defendant herein should be granted
letters of administration would have been gone into. It is not unreasonable to
suppose that in that wise the caveators would have to produce evidence to support
their contention that the defendant should not be granted the letters. That may have
involved adducing evidence about the marital status of the defendant; that may
have involved producing evidence to show that the marriage of the late Agyepong
to the defendant was a nullity.
But the caveators were precluded from producing that evidence. Whether or not
any such evidence was forthcoming is quite a different matter. From the mere fact
that the caveators were prevented from adducing the required evidence, I do not
think that it is open to counsel for the defendant to say before this court that the
plaintiff one of the caveators, did not challenge the marital status of the defendant
nor that he did not assert, then that the marriage was a nullity.
He was not given the opportunity to raise the issue of fraud. All that the warning
required of a caveator is that he should show his "interest in this matter." And the
plaintiff herein as one of the caveators in the Kumasi case did show his interest as
a customary successor by specifying which properties are family property.
Equally, if the particulars of fraud on the writ are not sufficient, it is for the defendant
to call for further and better particulars. And whether the plaintiff was a signatory to
the marriage certificate, or not, is a matter that would be gone into when the
substantive writ is being dealt with at the trial. And so also would the court have to
go into the question whether the defendant failed to disclose certain facts regarding
her status as the wife of the late Agyepong.
It seems to me that there is a distinction between one court of coequal jurisdiction
declaring an order of another court as being invalid and the question of recall or
revocation of the grant of letters of administration. Such cases as Dankwa v. Fuller
(1958) 3 W.A.L.R. 168, C.A. must clearly be distinguished from the matters raised
on the writ in the [p.479] instant case. The facts of this case are quite different from
the facts in that case. In that case the Court of Appeal relied, inter alia, on R. v.
Akiwumi and Bannerman; Ex parte Dako (1957) 3 W.A.L.R. 137 which had held
that an order of the High Court enlarging time is "a binding order which is not even
appealable."
Here the court will be asked to revoke or recall the grant of letters of administration
made, on the ground, among others, that the court which made the order had been
misled, as all the facts were not before it. All the cases cited by counsel for the
defendant would in my view avail him, and very much so, if in the Kumasi case
pleadings had been ordered and the issues gone into. All that the judge did in the
Kumasi case was to exercise his discretion. He did not order pleadings and so the
substantial issues to be gone into were not dealt with.
The issue here is not so much that a valid judgment is to be declared invalid so as
to invoke Punjabi Brothers v. Namih (supra) as that a different power is to be
invoked, that is to say, the power to recall or revoke the grant of letters of
administration. And counsel concedes that a judgment obtained by fraud can be
set aside. It can, therefore, never be an argument against the setting aside of a
judgment obtained by fraud to say that that judgment being of full force and effect
cannot be declared invalid by a court of co-equal jurisdiction. If it was obtained by
fraud then it can be set aside, by the High Court of Justice and not the Court of
Appeal which merely "affirmed" the grant upon an appeal. And arguments of res
judicata would also not help. The fraud alleged in the writ in the present case
raises substantial issues for determination. The defendant applied for the grant in
the Kumasi case on the basis that she was a widow. Marriage is a matter of
status. Was she or was she not married under the Marriage Ordinance? Was that
marriage valid in law or not valid in law. The fact that the late Agyepong had other
children became obvious at the Court of Appeal, one of whom aged about 38 years
was joined in the grant.
If this child was 38 years in 1972, she must have been born in 1934. So when the
late Agyepong married the defendant in 1956 or thereabouts, was there a valid
marriage subsisting under customary law which could affect the validity of this 1956
marriage? Was the plaintiff a signatory to the marriage? If yes, how far is he
precluded from denying his own act as a witness? How far, if at all, can he be
allowed to rely on a fraudulent act to which he was a party. Or was he?
In all the circumstances of this case, I hold that the court has jurisdiction to deal
with the writ, that there are triable issues of substance and I will therefore dismiss
the application. I award costs of one hundred cedis against the defendant.
DECISION
Application dismissed.
S. Y. B.-B.
IN RE AGYEPONG (DECD.); DONKOR AND OTHERS v. AGYEPONG [1973] 1
GLR 326-334
COURT OF APPEAL
11 DECEMBER 1972
APALOO, AMISSAH AND SOWAH JJ.A.
Judicial precedent¾Stare decisis¾Court of Appeal¾Decisions binding on the Court
of Appeal¾Whether pre-1960 decisions of the then Court of Appeal binding on any
court after the 1960 Republican Constitution¾Constitution, 1960, art. 42
(4)¾Courts Decree, 1966 (N.L.C.D. 84), para. 2 (3)¾Constitution, 1969, art. 125
(2).
Judicial precedent¾Non-binding decision¾Refusal to follow¾Whether a nonbinding decision ought not to be followed¾Circumstances to be taken into account
before court refuses to follow¾Decision concerned with procedural
rights¾Interpretation of "may" as "must" giving rise to inconvenience and
injustice¾Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order
60, r. 21 (2).
Administration of estates¾Letters of administration¾Caveat¾Affidavits of interest
disclosing no issue between parties as to who was entitled to grant of letters of
administration¾Whether the words "the Court may order" means the court must in
all circumstances order the applicants to issue writ of summons against the
caveator¾L.N. 140A of 1954, Order, 60, r. 21 (2).
[p.327]
Administration of estates¾Letters of administration¾Grant of¾Two beneficiaries of
estate infants¾Whether grant of letters of administration can be granted to
applicant only¾ Administration of Estates Act, 1962 (Act 63), s. 77 (1).
HEADNOTES
Mrs. A. as the lawful widow of her deceased husband who died intestate applied to
the High Court, Kumasi, for letters of administration in respect of his estate. The
court granted the application on condition that "the usual notices" be filed and as a
result three persons all acting by the same solicitor filed caveats against the grant,
and affidavits of interest in which they laid claim to certain properties which the
widow had included in the inventory of the property of the deceased. The widow
then moved the court to order removal of the caveats and to grant her letters of
administration. Counsel for the caveators objected on the ground that since the
parties could not reach an agreement as to who should administer the estate, the
court was bound by L.N. 140A of 1954, Order 60, r. 21 (2) to order the applicant
widow to issue a writ of summons to determine the issue. The trial judge found that
the affidavits of interest disclosed no issue between the parties as to who should
administer the estate and that as the widow's right to administer it was not
questioned, the caveats should go. He granted the widow letters of administration.
The caveators appealed on the main ground that the words "the Court may order
that the applicant do issue a writ" in Order 60, r. 21 (2) were interpreted by the
Court of Appeal existing in 1959 (in Nimoh v. Acheampong [1959] G.L.R. 49, C.A.)
to impose a mandatory duty upon the court to order a writ whenever the parties
were not in agreement and that the present Court of Appeal was bound by that
interpretation.
Held, dismissing the appeal:
(1) Order 60, r. 21 (2) conferred a discretion on the court to order or to decline to
order a writ as it thought fit because:
(i) the decision to the contrary by the Court of Appeal existing in 1959 was not
binding on the present Court of Appeal. The court existing in 1959 was abolished
by the Constitution, 1960, and the Supreme Court, a completely new institution,
became the final court of appeal. The Supreme Court was by article 42 (2) bound in
principle to follow only its own previous decisions. In 1966 that Supreme Court was
abolished, and the final Court of Appeal established by N.L.C.D. 84 was not made
a successor to it and by N.L.C.D. 84, para. 2 (3) decisions given by the Supreme
Court between 1 July 1960 and October 1966 were constitutionally denied any
binding efficacy after 1 October 1966. Article 125 (2) of the 1969 Constitution
made the present Court of Appeal the successor to the Court of Appeal in
existence before the coming into force of the 1969 Constitution. The only decisions
binding on the post 1966 Court of Appeal were its own decisions. The result was
that the only decisions binding on the present Court of Appeal before the
suspension of the 1969 Constitution were those given between October 1966 and
22 August 1969, and since then those given by the present Court of Appeal.
(ii) The fact that a decision was not binding did not mean that it ought not to be
followed, but where a decision had given rise to inconvenience and injustice which
the framers of the rules could not have intended, and where, being merely
concerned with procedural rules, no rights had been founded on it, the court should
not apply the maxim communism error facit jus to keep it alive. In interpreting
Order 60, r. 21 (2) of the 1954 Rules the question was whether the use of the word
"may" in its ordinary and natural meaning imported [p.328] an obligation. If the word
"may" was interpreted as "must" it would lead to an abuse of the judicial process
because a caveator who had no good ground for opposing the grant of probate or
letters of administration could nevertheless oblige a bona fide applicant to
commence litigation. Nimoh v. Acheampong [1959] G.L.R. 49, C.A. not followed. In
re Arthur (Decd.); Abakah v. Attah-Hagan [1972] 1 G.L.R. 435, C.A. applied. In re
Baker; Nichols v. Baker (1890) 44 Ch.D. 262 at p. 270, C.A. and Julius v. Oxford
(Bishop) (1880) 55 App.Cas, 214, H.L. cited.
(2) The trial judge exercised his discretion properly against the issue of a writ. The
affidavits of interest, prepared with full professional assistance, could not be
construed as taking issue with the widow on her right to administer her husband's
estate, and it was plain that under Order 60, r. 21 (2) the writ, if issued, had "to
determine the issue as to who is entitled to a grant of probate or letters of
administration, as the case may be."
Per curiam. There is however one respect in which the learned judge slipped. The
applicant disclosed in her affidavit that two of the beneficiaries of the estate were
infants. That being the case, section 77 (1) of the Administration of Estates Act,
1962 (Act 63), provides that the grant should be made to at least two persons.
CASES REFERRED TO
(1) Nimoh v. Acheampong [1959] G.L.R. 49, C.A.
(2) In re Arthur (Decd.); Abakah v. Attah-Hagan [1972] 1 G.L.R. 435, C.A.
(3) Karimu v. Ghassoub, Court of Appeal, 27 July 1970, unreported; digested in
(1970)
C.C. 104.
(4) Sarpong v. Atta Yaw [1964] G.L.R. 419, S.C.
(5) In re Baker; Nichols v. Baker (1890) 44 Ch.D. 262; 59 L.J.Ch. 661; 62 L.T. 817;
38 W.R. 417; 6 T.L.R. 237, C.A.
(6) Julius v. Oxford (Bishop) (1880) 5 App. Cas. 214; 49 L.J.Q.B. 577; 42 L.T. 546;
44 J.P. 600; 28 W.R. 726, H.L.
NATURE OF PROCEEDINGS
APPEAL from a ruling of Koranteng-Addow J. delivered in the High Court, Kumasi,
granting letters of administration to the respondent. The facts are sufficiently set
out in the judgment.
COUNSEL
U. V. Campbell (Akainyah with him) for the appellants.
Dr. de Graft-Johnson (Dr. Ohene Djan with him) for the respondent.
JUDGMENT OF APALOO J.A.
Apaloo J.A. delivered the judgment of the court. The late Joseph Kofi Agyepong
died at Takoradi on 20 December 1971. Although he seems to have hailed from
Kumasi, the evidence suggests that he lived at Takoradi, where he had
considerable property. He contracted a marriage under the provisions of the
Marriage Ordinance, Cap. 127 (1951 Rev.), on 6 October 1956 with the
respondent. There are two issues of that marriage a girl and a boy both of whom
are infants, their ages being fourteen and seven years respectively. The deceased
was survived by his widow and these children. He died intestate.
[p.329]
On 13 January 1972, the respondent as the widow and lawful relict of the
deceased, applied to the High Court, Kumasi, for letters of administration to
administer the estate of her husband. That application came before the court on 18
January, and the court made an order acceding to the application on condition that
"the usual notices" be filed. These were filed and as a result two persons and a
limited company all acting by the same solicitor filed caveats against the grant.
They were Afua Donkor, Kwame Abosi and Broadway Cinema and Hotel Co., Ltd.
The registrar, acting in accordance with Order 60, r. 18 of the Supreme [High] Court
(Civil Procedure) Rules, 1954 (L.N. 140A), warned each of these three persons to
"file affidavits setting forth your interest in this matter." In response to this, affidavits
were sworn to by Afua Donkor the caveatrix, Emmanuel Victor Addo-Boamah and
James Emmanuel Aggrey. These two gentlemen described themselves as "Law
clerk" and "secretary to Beyin Chambers" respectively. It is plain from the affidavits
that the caveatrix and caveators were merely concerned in laying claim to
properties which the widow had included in the inventory as the property of the
intestate. Thus the caveatrix Afua Donkor swore that:
"(2) The deceased J. K. Agyepong, Esq., was my uncle and was originally the
lessee of plot 38 Mbrom, Kumasi.
(3) On or about 9 June 1970, the said J. K. Agyepong after obtaining the necessary
consent assigned the said plot to me.
(4) The said assignment was duly registered.
(5) The inclusion of house number 38 in the list of properties of the deceased by
the applicant is therefore wrongful and a slander of my title to the said property."
The affidavit of interest filed on behalf of the limited liability company was sworn to
by Victor Addo-Boamah who swore that he had been authorised by an entity he did
not disclose. He states in paragraph (2) that "I am informed and verily believe that
the undermentioned properties belong to the Broadway Cinema and Hotel Co.,
Ltd." He then listed nine cinema buildings and concluded, "I therefore swear to this
affidavit." The affidavit of interest sworn to by the second of the law clerks, namely,
James Emmanuel Aggrey reads as follows:
"(1) I am secretary to Beyin Chambers and I have authority to swear to this
affidavit.
(2) I am informed and verily believe that the undermentioned properties belong to
the family."
He then describes three buildings at Takoradi and concluded as follows:
"(3) The said Kwame Abosi has been appointed as the successor to J. K. Aggrey
(deceased). I therefore swear to this affidavit."
When the respondent had sight of these affidavits, she by her counsel, moved the
court to order the removal of the caveats and prayed [p.330] that letters of
administration be granted in her favour. This application was opposed by Mr.
Akainyah who was acting for the caveatrix and the two caveators. The learned
judge Koranteng-Addow J. recorded Mr. Akainyah's objections as follows:
"Mr. Akainyah replies and submits that an order for letters of administration should
not be granted because his clients lay claim to some properties supposed to be
part of the estate. They are family properties and properties belonging to a limited
liability company. And so no order should be made to enable the applicant to
administer the estate of the deceased. He refers the court to Order 60, r. 21 (2)
and submits that the court is bound to order a writ to issue in the matter."
The learned judge was unimpressed by this contention and did not accept it as a
true view of the matter. He considered that there was no issue between the
applicant and the caveators as to who was entitled to administer the estate of the
deceased. He thought therefore that it would be pointless to order the issue of the
writ. Instead, he considered that as the applicant's right to administer the estate
was not questioned, the caveats should go. He ordered their removal and the grant
of letters of administration to the applicant. It is this order that the caveators contest
by this appeal
The grounds on which the appellants invite us to reverse the order were formulated
in the notice of appeal as follows:
"(a) The learned trial judge misdirected himself on the law in refusing to order
pleadings as required by the rules of court.
(b) The learned trial judge erred in removing the caveats from the file and granting
letters of administration to the applicant when the parties were not in agreement."
Before us, the complaint was not that the judge erred in failing to order pleadings
but that he was in breach of a mandatory duty to order, the issue of a writ inasmuch
as the parties failed to come to an agreement. The sheet anchor of that submission
is the now familiar Order 60, r. 21 (2) of the Supreme [High] Court (Civil Procedure)
Rules, 1954 (L.N. 140A). That rule reads:
"Failing the parties coming to such an agreement, however, the Court may order
that the applicant do issue a writ of summons against the caveator within a
specified period from the date of such order, to determine the issue as to who is
entitled to grant of probate or letters of administration, as the case may be."
It is urged by Mr. Campbell for the applicants that the caveators have an interest in
the estate of the deceased and were entitled by Order 60, r. 17 to lodge a caveat
and unless the parties were able to agree as to whom letters of administration
should be granted, the [p.331] judge had no option but to order the issue of a writ.
Mr. Campbell did not of course fail to notice that words used by the rule are that the
"Court may order" and that imports some sort of judicial discretion. But counsel
says, the matter is not res integra but that it has been concluded by the 1959
decision of the Court of Appeal in Nimoh v. Acheampong [1959] G.L.R. 49, C.A. Mr.
Campbell says that that decision is binding on us and that we should follow it.
Counsel himself properly, in our opinion, drew our attention to the recent case of In
re Arthur (Decd.); Abakah v. Attah-Hagan [1972] 1 G.L.R. 435 at p. 443 C.A. where
Archer J.A. expressed grave doubts as to the correctness of the decision in Nimoh
v. Acheampong (supra) but counsel says, his view was not only obiter but it was
not concurred in by any of the two other members of the court, namely, Azu Crabbe
J.S.C. and Lassey J.A. He says that even as recently as July 1970, the Court of
Appeal speaking through Archer J.A. held in Karimu v. Ghassoub, Court of Appeal,
27 July 1970, unreported; digested in (1970) C.C. 104, that a 1964 decision of the
then Supreme Court in Sarpong v. Atta Yaw [1964] G.L.R. 419, S.C. was binding
on the Court of Appeal.
We are then squarely faced with the question whether a pre-1960 decision of the
then Court of Appeal binds any court after the Republican Constitution of 1960. We
think not. Since 1960, there has been a completely new constitutional set-up with a
fresh hierarchy of courts. Before the Republican Constitution of 1960, the highest
court in the land was the Privy Council. Its decisions were binding on the then Court
of Appeal whose decision in turn was binding on all other courts on points of law.
With the promulgation of the 1960 Constitution, the Supreme Court, a completely
new institution became the final Court of Appeal. Appeals to the Privy Council were
stopped and the Court of Appeal which fathered Nimoh v. Acheampong (supra)
was abolished. The Supreme Court was not made a successor of any of the
previous courts. In so far as the 1960 Constitution took any cognisance of the
cherished principle of stare decisis, article 42 (4) provides that:
"The Supreme Court shall in principle be bound to follow its own previous decisions
on questions of law, and the High Court shall be bound to follow previous decisions
of the Supreme Court on such questions, but neither court shall be otherwise
bound to follow the previous decisions of any court on questions of law."
Accordingly, if the contention which Mr. Campbell urges, had been urged on say 2
July 1960, there could have been no clearer authority for rejecting it than the subarticle quoted above. The 1960 Constitution was suspended by the Proclamation
of 24 February 1966. Paragraph 95 of the Courts Decree, 1966 (N.L.C.D. 84),
repealed the Courts Act, 1960 (C.A. 9), and abolished the courts established under
that Act. Paragraph [p.332] 1 of N.L.C.D. 84 established only two superior courts,
namely, the Court of Appeal and the High Court. The Court of Appeal was not
made a successor to the Supreme Court established under the 1960 Constitution.
But paragraph 2 (3) of N.L.C.D. 84 preceeded to confer on this new court the same
judicial autonomy that article 42 (4) conferred on the pre-1966 Supreme Court. It
enacts that:
"The Court of Appeal shall be bound in principle to follow its own previous
decisions on questions of law and the High Court shall be bound to follow the
previous decisions of the Court of Appeal, but neither shall be otherwise bound to
follow the previous decisions of any Court on questions of law."
The purport of this seems clear. Decisions given by the Supreme Court between 1
July 1960 and October 1966, were constitutionally denied any binding efficacy after
the coming into operation of the Courts Decree, 1966 (N.L.C.D. 84), on 1 October
1966. It would follow from this that Karimu v. Ghassoub (supra) which was a 1964
decision of the then Supreme Court could not have been binding on any court after
October 1966. The certainty of the law which is the main proffered virtue of the
principle of stare decisis, was again only taken note of by the recently suspended
1969 Constitution. Article 125 (2) of that Constitution made the present Court of
Appeal the successor to the Court of Appeal in existence before the coming into
force of the Constitution and accordingly provided that:
"[T]he Court of Appeal as established by this Constitution shall be bound to follow
the decisions of law binding on the Court of Appeal as it existed immediately before
the coming into force of this Constitution.”
The only decisions binding on the post-October 1966 Court of Appeal were its own
decisions. The result seems to be that the only decisions binding on the present
Court of Appeal before the suspension of the 1969 Constitution, are those given
between October 1966 and 22 August 1969 and those given since that date by the
present Court of Appeal itself. Nimoh v. Acheampong (supra) is not one of those
decisions and we must reject the contention that that decision is binding on us. In
any event, the integrity of that decision as a sound judicial precedent was
considerably punctured by the just and well merited observations of Archer J.A. in
In re Arthur (Decd.) (supra).
That leaves us free to consider de novo whether the words "the Court may order . .
. that the applicant do issue a writ of summons against the caveator," etc. used in
Order 60, r. 21 (2) impose an obligation on the court to order a writ or confers a
discretion which the court may exercise for or against the issue of writ as it thought
fit. If these rules had been enacted after the coming into force of the Interpretation
Act, 1960 (C.A. 4), on 29 June 1960, the question could [p.333] be answered
simply by reference to section 27 of that Act which provides that: "In an enactment
made after the passing of this Act, 'shall' shall be construed as imperative and 'may'
as permissive and empowering." But these rules were made in 1954 and the
question is whether in their ordinary and natural meaning, they import an obligation.
We do not think so, although we do not go the whole hog with Cotton L.J. who said
in In re Baker; Nichols v. Baker (1890) 44 Ch.D. 262 at p. 270, C.A. that may
"never can mean 'must,' so long as the English language retains its meaning." In
some limited cases, the courts have held that "may" should be interpreted as
"must." See Julius v. Oxford (Bishop) (1880) 5 App.Cas. 214, H.L. This is not one
of those cases and we can conceive of no good reason why we should interpret
"may" as "must" in these procedural rules. Such an interpretation lends itself to
abuse of the judicial process because a caveator who had no good ground for
opposing the grant of probate or letters of administration may nevertheless oblige a
bona fide applicant to commence litigation. And the Nimoh interpretation has been
productive of much pointless litigation in the past.
The fact that we have held that the Nimoh decision is not binding on us does not
mean ipso facto that we should not follow it. But that decision has given rise to
inconvenience and injustice which the framers of the rule cannot have intended.
True, it has stood undisturbed for thirteen years but being mere procedural rules,
no rights can have been founded on it nor could it be said that persons have
ordered their affairs on the basis of its correctness. We therefore cannot apply the
maxim communism error facit jus to keep it alive. In the Nimoh judgment itself, the
court said at p. 50 it "was therefore bound under the provision of Order 60, Rule 21
(2) to order the applicant to issue a writ," etc. without appearing to have given
thought to the question whether the word "may" imports an obligation or discretion.
Our considered view is that the words "may" imports a discretion and we think we
must now respectfully give Nimoh v. Acheampong (supra) its quietus.
If Order 60, r. 21 (2) confers a discretion on the court to order or decline to order
the issue of writ as it thought fit, the only question to which we must now address
ourselves is whether in the instant case, the judge exercised his discretion properly
against the issue of a writ. We think that he did.
We have already reproduced verbatim the affidavits sworn to by the three
caveators. It is to be remembered that these affidavits were prepared with full
professional assistance. It is clear that the caveatrix and the company caveator at
least have said nothing which on a most charitable view of their case can be
construed as taking issue with the respondent on her right to administer her
husband's estate. The caveator Abosi was equally more concerned in advancing
his family's [p.334] claim to the three properties described in the affidavit than
raising any issue with the respondent as to her right to administer the estate. It is
only at the tail end of it that the information is proffered that he had been appointed
successor to the deceased and this was apparently done to disclose a right to lay
claim to these properties on behalf of the family. That it is the extent of the property
of the deceased rather than the right to administer it that the caveators complained
about, is supported by the recorded submissions of their counsel Mr. Akainyah.
And nowhere in his submissions, did he claim, even faintly, that any of the
caveators was entitled as against the respondent to letters of administration or that
any of them expressed a wish to administer the estate.
But it is plain that under Order 60, r. 21 (2) the writ, if taken, had "to determine the
issue as to who is entitled to a grant of probate or letters of administration, as the
case may be." Notwithstanding Mr. Campbell's able submissions, we are entirely
satisfied that there was no conflict in the court below as to who was entitled to
administer the estate. In these circumstances, had the learned judge ordered the
respondent to issue a writ, he would have foisted pointless litigation on the parties.
The judge no less than ourselves owed it to the parties not to constrain them to
purposeless litigation and we wholeheartedly support the judge's order.
There is however one respect in which the learned judge slipped. The applicant
disclosed in her affidavit that two of the beneficiaries of the estate were infants.
That being the case, section 77 (1) of the Administration of Estates Act, 1961 (Act
63), provides that the grant should be made to at least two persons. The judge
ordered that the grant be made to the respondent alone. We think the mandatory
requirement of section 77 (1) was not brought to his notice and we propose to
correct this slip by varying the judge's order and directing that the grant be made to
two persons. In the course of the argument we ascertained the wishes of the
respondent in this connection. She has expressed a willingness to join in the grant
with one of the other children of the deceased and she gave their names in order of
preference as Comfort Agyepong aged 38 and Ebenezer Sarpong Agyepong aged
32.
We think this is a case in which we should accede to the wishes of the widow and
thus ensure a smooth and harmonious administration of the estate. Accordingly,
we propose to order that letters of administration in respect of the estates of the
late Joseph Kofi Agyepong be granted jointly to Cecilia Agyepong and Comfort
Agyepong.
DECISION
Appeal dismissed.
S. O.
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